Parental Kidnapping/Custody Issues
Custody and kidnapping issues are complicated in terms of law; hence, it is vital for parents to seek experienced lawyers to assist them in their cases. In normal circumstances, both parents possess equal rights when it comes to accessing a child. However, being a parent does not award individuals parental rights, particularly when parents are separated or divorced. Cultural differences, ethnic, and religious beliefs, can lead to separation and divorce and, consequently, to parental kidnapping or child abduction if no legal proceedings are not instituted. Parental kidnapping cases are usually complicated because they are categorized into civil, criminal, as well as international law. The appropriate solution to parental kidnapping and child abduction is to avert its occurrence in the first place.
CHILD CUSTODY AND PARENTAL KIDNAPPING ISSUES
Cases of parental kidnapping have been on the rise in the US, where children are taken to other foreign countries after parental disagreement or when the divorce proceedings commence. Parental kidnapping is a situation where one parent denies the other the capacity to access their child (Dabbagh 2012). Parental kidnapping can also be referred to as parental abduction or custodial interference, and the parent committing the act restricts the child from seeing the other parent, or hides the child from any jurisdiction. One parent may develop fear that he/she may lose the guardianship of the child after legal proceedings or may hide the child to prevent domestic hostility or child abuse. The federal law forbids parents from taking a child away from the US to deny the other parent’s custodial rights.
Parental kidnapping is widespread in almost all cultures, but certain characteristics happen in some families, leading to the likelihood for parents to engage in the act of abduction. According to Dabbagh (2012), parental kidnapping may be influenced by changes in social, economic, and legal systems, or conflicting issues between individuals’ cultural beliefs and the law. When a country or a region experiences natural disaster, war, or change of leadership, parents may separate, leading to legal redress for child’s custody.
Biological parents are permitted by state laws to make all decisions that pertain to the upbringing of their child, and the law does not compel them to secure legal right to undertake such decisions if they remained married. The state laws on child custody apply when disagreement ensue on which parents should undertake certain decisions. However, in some states, parental kidnapping my not amount to a criminal offense. It only becomes a criminal offense if a formal custody order has been issued from the family courts. State officials can also offer legal directives if they believe that one of the parents is not fit to carry out parental duties, and the family courts can determine the appropriate person to take care of the child.
Cases of parental kidnapping are difficult to resolve, particularly in the US, because the country lacks consistency with regard to family law and child custody owing to its extensive landmass. This allows individual states to implement their own laws concerning cross-border family cases and child custody. In addition, the Uniform Law Commission, which is based in Chicago, has strived to draft uniform laws for solving family issues, but there is no cohesiveness among states in accepting such laws (Kucinski 2012).
Parental kidnapping is extremely difficult for a parent who does not have an access to his/her child. Such parents usually undergo emotional, psychological, and financial problems, and this can be compounded if the issue involves crossing an international border (Slota 2009). When a child from the US is taken away to a foreign country by one of his/her parents, the US laws cannot dictate the return of that child, even if the child has been registered as a US citizen. Additionally, practical aspects in the family courts throughout the US have made it hard for a “left behind” parent to secure a return of his/her child to the motherland (Zashin, Heckman and Keating 2015).
Parental kidnapping is a serious crime, and abductors should never be compensated for their criminal acts. The law should ensure that parents do not engage in actions that affect other parents and children, as they seek justice from unsympathetic courts. The courts can issue a criminal arrest warrant against a partner who takes a child below 16 years away from his/her home country without the permission from the other parent. The Hague Convention was instituted to safeguard children from perilous impact of unlawful removal from their homes by implementing procedures that would ensure a child’s timely return.
PREVENTING PARENTAL KIDNAPPING
Prevention of child interference is necessary since the harm to the child cannot be reversed. Parents should work on identifying reasons that could lead to child abduction so that they can prevent it before it happens. Seeking the services of a family law attorney can assist in filling the gaps and keeping everything about child custody in order. Incorporating child’s views concerning custody can assist in preventing custodial interference, but should correspond with the international legal instruments to cater for the child’s impact (Ball and Kucinski 2014).
Federation interventions on family law have emerged to prevent states from abusing the international law on child custody. The federal law is capable of creating a level ground where aggrieved parents can turn to in case the states have refused to offer a more favorable solution to child custody and maintenance (Halabi 2014). For instance, the federal government has offered a directive on the family law to pursue parents with delinquent family maintenance responsibilities through the federal welfare assistance. Congress also enacted the Parental Kidnapping Prevention Act (PKPA) with an aim of eradicating haven states through necessitating state judges “to differ to the continuing jurisdiction of any decree issued by a previous state judge with jurisdiction over the case” (Halabi 2014:155).
When parental kidnapping has already occurred, the affect parent can try to reach the spouse through mediation. Mediation involves seeking a third person, who is neutral to the issue, to engage both parents in a conversation that can guide them to reconsider their stands, and eventually find the solution to their situation (Kucinski 2012). Mediation can occur even before kidnapping, since it assists in resolving custody disputes before they occur. The family law attorneys should also advise their clients on criminal remedies available to facilitate the child’s return.
Parental kidnapping or child interference has affected the lives of many children, who are compelled to stay away from one of their parents due to domestic issues that lead to separation or divorce. Taking a child into custody without proper legal procedures is a crime, and parents should work on ways to prevent child interference by seeking the services of family law attorneys. State officials can command the prosecutors to open a case of the parent who has abducted the child, but cannot enforce any law to assist the return of the abducted child. Mediation can assist in solving custodial issues, especially when they have already occurred, with an intention of returning the kidnapped children.
Ball, Kaitlin and Melissa Kucinski. 2014. “Guidelines For Direct Child Involvement In Contested Custody Litigation.” American Journal of Family Law 28(3):143-147.
Dabbagh, Maureen. 2012. Parental Kidnapping in America: An Historical and Cultural Analysis. Jefferson, N.C: McFarland & Co.
Halabi, Sam. 2014.”Abstention, Parity, and Treaty Rights: How Federal Courts Regulate Jurisdiction under the Hague Convention on the Civil Aspects of International Child Abduction.” Berkeley Journal of International Law (BJIL) 31(2):144-194. http://dx.doi.org/doi:10.15779/Z380M18
Kucinski, Melissa A. 2012. “Creating A Successful Structure To Mediate International Parental Child Abduction Cases.” American Journal Of Family Law 26(2):81-85.
Slota, Holly J. 2009. “Preventing And Responding To International Child Abduction.” American Journal Of Family Law 23(2):73-78.
Zashin, Andrew A., Christa G. Heckman, and Amy M. Keating. 2015. “United States as a Refuge State for Child Abductors: Why the United States Fails to Meet Its Own Expectations Relative to the Hague Convention, The.” J. Am. Acad. Matrimonial Law 28:249-284.